Ineos loses legal challenge on Scottish fracking “ban”

Scottish Court of Session

Scottish Court of Sessions

The shale gas company, Ineos, has lost its case against the Scottish Government’s policy on fracking.

The judge at the Court of Sessions, Lord Pentland, ruled that the Scottish Government’s “preferred policy position” against fracking for shale gas in Scotland should stand.

The ‘effective ban’ on fracking announced by Scottish ministers last year does not amount to a legally enforceable prohibition, therefore Ineos’s case is “unfounded”, Lord Pentland said.

He also found that since the Scottish Government had not yet made a final decision, the claim by Ineos and Reach Coal Seam Gas for compensation on the basis of a breach of its human rights was premature.

The ruling stated:

“The petition is predicated on the proposition that the Scottish Government has introduced an unlawful prohibition against fracking in Scotland.

“Whilst acknowledging that there have been a number of ministerial statements to the effect that there is an effective ban, the Lord Advocate, on behalf of the Scottish Ministers, made it clear to the court that such statements were mistaken and did not accurately reflect the legal position.

“I consider that the government’s legal position is soundly based and that there is a indeed no prohibition against fracking in force at the present time.”

Lord Pentland added that the present position was “an emerging and unfinalised planning policy”, saying there was “no basis on which the court should interfere” with an ongoing policy making process.

The lawyer for the Scottish Government, James Mure QC, had told the court the actual policy on fracking would be decided in October this year.

He said “the concept of an effective ban” was a PR “gloss”, describing it as “the language of a press statement”.

“Cause of acute concern” – Paul Wheelhouse

Scottish energy minister Paul Wheelhouse said today:

“I welcome the Court of Session’s ruling on this important issue, which has been a cause of acute concern in communities across Scotland.

“This decision vindicates the extensive process of research and consultation which the Scottish Government has undertaken since 2015.

“As I set out in October, our preferred position is not to support Unconventional Oil and Gas extraction in Scotland, and that position remains unchanged.

“I have repeatedly set out to parliament that we would undertake a Strategic Environmental Assessment (SEA) ahead of finalising that position and that approach has been endorsed by the overwhelming majority of the Scottish Parliament.

“The work to complete the SEA and a Business and Regulatory Impact Assessment is currently underway and the findings will be carefully considered.

“In the meantime, a moratorium is in place which means no local authority can grant planning permission and ministers would defer any decision on any planning application that did come forward until the policymaking process is completed.

“The practical effect of the current moratorium and the policymaking process which is underway to finalise our position is that no fracking can take place in Scotland at this time.”

“Scottish Government did not know what it was doing” – Ineos

In a statement, Tom Pickering, Operation Director of Ineos Shale, said:

“We are grateful to Lord Pentland for clarifying that there is no fracking ban. The Scottish Government caved in to pressure from ill-informed environmental activists. Today’s judgement makes it clear government decisions will now have to be based on facts and science, rather than prejudice and political expediency.”

“We welcome the decision announced by Lord Pentland today.  We are in the extraordinary position where a senior judge has effectively concluded that the Scottish Government did not know what it was doing. He has ruled that there is no fracking ban in Scotland.  We are sure that this will be a surprise to all those who heard the First Minister and others repeatedly tell Holyrood the exact opposite. It is for MSPs to decide whether Parliament was misled deliberately or simply through incompetence.

“The Scottish Government caved in to demands from ill-informed environmental activists. It ignored the evidence presented by its own scientific experts. Today’s judgement makes it clear the SNP Government will now have to make decisions based on facts and science rather than prejudice and political expediency.

“It is astonishing how the government could have got this so wrong.

“If Scotland wants to be considered as a serious place to do business then it is imperative that Government ministers can be taken at their word. We cannot have a situation where we need to go to court to find out what government policy is.  Business needs a transparent environment that will encourage investment in Scotland for the long-term.”

“Huge relief” – Friends of the Earth

The ruling has been welcomed by Friends of the Earth Scotland, which submitted a public interest intervention in the case. It argued that any ban was lawful and it was required to meet Scotland’s legally binding climate change commitments.

Mary Church, Friends of the Earth Scotland head of campaigns, said:

“We are delighted that INEOS has lost its challenge against the Scottish Government’s ‘effective ban’ on fracking. Today’s ruling will come as a huge relief to the thousands of people who have fought to stop fracking in Scotland, particularly those faced with the prospect of living near this dirty, damaging industry.

“INEOS should listen to the people and parliament of Scotland who have made it clear that there is no support for fracking, and give up on its plans to trash the central belt and the climate.

“Support for a ban on fracking from communities on the frontline of this industry, people the length and breadth of Scotland, and almost all the parties at Holyrood is overwhelming. There is little doubt that a strategic environmental assessment will support a ban on fracking given the mountains of evidence about the risks of the unconventional oil and gas industry to our environment, climate and people’s health.

“We urge the Scottish Government to move forward with its decision making process on fracking as swiftly as possible and use the powers now available to them to legislate for a full ban, and draw a line under the issue of unconventional oil and gas extraction for good.”

“Abandon dangerous scheme to frack Scotland”

Wenona Hauter, Executive Director of Food and Water Watch, said:

“In its quest to frack Scotland, Ineos has been blocked by local government officials, the courts, and the overwhelming majority of the Scottish public. The company should heed this overwhelming opposition and abandon its dangerous scheme to frack Scotland.

“Ineos’ fracking for plastics has made a significant contribution to pollution on both sides of the Atlantic. The company has most recently complained about the negative impacts of the shutdown of the Mariner East pipeline in Pennsylvania, which supplies its Grangemouth facility. It is clear that Ineos only wants to frack the UK in order to secure a cheap feedstock for its plastic production.

“The next step for the Scottish government is to clear up any remaining ambiguity and enact a once-and-for-all total ban on fracking.”

“Confirm the ban”

Leigh Day solicitor, Carol Day, said:

“We support the call on the Scottish Government to now formally confirm its ban on unconventional oil and gas exploration in line with public opinion and other jurisdictions of the UK that are on the same trajectory.”

“Lancashire residents misled”

A spokesperson for Lancashire For Shale, accused campaigners of misleading residents over the Scottish fracking ban.

“It is quite clear that opponents of shale gas extraction have used news of a supposed ban in Scotland to try and influence public opinion here.

“We’ve seen them repeatedly push the false line that the Westminster government in England has behaved somehow recklessly in supporting the industry, whilst claiming that the Scottish government has acted to protect its people and prevent harm.

“The only things that a ban on the safe and responsible extraction of Lancashire shale gas would prevent are economic opportunities, jobs, and the chance to improve energy security and cut emissions by reducing our dependency on imported foreign gas.

“Campaigners should be ashamed of the way they have tried to pull the wool over the eyes of Lancashire and its people.”



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